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Court of AppealDismissedCriminal Appeal No. 170 of 2000

MASUO BAKARI TAJIRI & MOHAMED ABDULRAHMAN SAID vs REPUBLIC [2001] KECA 98 (KLR)

Court of Appeal of Kenya
25 January 2001
ROR. S. C. OmoloALA. A. LakhaEOE. O'Kubasu
573 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed this robbery appeal, confirming that second appeals can only challenge legal errors, not how evidence was weighed.

What this practically means

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Executive summary

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The two appellants were convicted by the Mombasa Chief Magistrate of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death, the only sentence provided by law. Their first appeal to the High Court of Kenya at Mombasa (Waki, J. and Commissioner Mrs. Khaminwa) was dismissed on 24th May 2000, and they appealed to the Court of Appeal at Mombasa. Before the Court of Appeal (Omolo, Lakha and O'Kubasu, JJ.A.), the appellants' main ground was that the evidence was conflicting and, properly assessed, not credible. The Court set out section 361 of the Criminal Procedure Act, which confines second appeals to matters of law and treats severity of sentence as a matter of fact. Interpreting that provision, the Court held that once competent evidence is established, it is not open to the Court on a second appeal to examine the sufficiency of that evidence or to reverse findings of fact upheld by the first appellate court merely because it might have reached a different conclusion. The Court adopted the Privy Council's pronouncement in Ramgopal v Shamskhaton that a third court cannot entertain an appeal on the soundness of the second court's findings of fact where there is evidence to consider. Finding competent evidence before both courts below, and the objections resting entirely on facts, the Court dismissed the appeal, thereby affirming the conviction and sentence. The judgment binds subordinate courts and the High Court on the limits of second appeals under section 361.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the evidence on which the conviction was based was conflicting and not credible
  2. 2.Whether, on a second appeal, the Court of Appeal can interfere with findings of fact upheld by the first appellate court

Key legal issues

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01

Scope of a second appeal under section 361 of the Criminal Procedure Act

Holding

A second appeal lies only on a matter of law; where there is competent evidence, the Court of Appeal cannot examine its sufficiency or reverse findings of fact upheld by the first appellate court.

Reasoning

The Court construed section 361(1) of the Criminal Procedure Act, which restricts second appeals to matters of law and treats severity of sentence as a matter of fact. Relying on the Privy Council's decision in Ramgopal v Shamskhaton, it held that a third court cannot entertain an appeal on the soundness of the second court's findings of fact where there is evidence to consider. The appellants' objections went solely to the credibility and weight of the evidence, which was competent and had been accepted by both courts below.

p. 2
02

Whether the evidence supporting the conviction was credible

Holding

There was competent evidence before the trial court and the first appellate court, so the ground that the evidence was conflicting and not credible failed.

Reasoning

The appellants' advocate's main ground was that the evidence was conflicting and, properly assessed, not credible. The Court, on a careful consideration, found competent evidence on the record. Since credibility and sufficiency of evidence are matters of fact outside the reach of a second appeal, the ground could not succeed, and the conviction and sentence as affirmed by the High Court stood.

p. 1

Legal principles established

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  • On a second appeal, the Court of Appeal is confined to matters of law and will not revisit the sufficiency or credibility of evidence that was before the trial court and the first appellate court.
  • Severity of sentence is a matter of fact for purposes of section 361 of the Criminal Procedure Act, and no appeal lies against sentence except where it was enhanced by the High Court or the subordinate court lacked power to pass it.

Court orders

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  1. 1.The appeal fails and is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority

Wrote the judgment

AL
majority

Wrote the judgment

EO
majority

Wrote the judgment

On appeal from
High Court of Kenya at Mombasa
H.C.CR.A. Nos. 160 & 162 of 1998
Jurisdiction invoked
Section 361 of the Criminal Procedure Act (appeal to the Court of Appeal on a matter of law only)

Relief refused

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The appellants' objection to their conviction for robbery with violence

The objections depended entirely on facts, and on a second appeal the Court can only entertain matters of law; there was competent evidence before the trial court and the first appellate court.

p. 2

Costs

No costs order was made in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This being a second appeal it cannot be entertained unless it is on some matter of law.
p. 2Scope of second appeal
once it is established that there is competent evidence it is not open to us on second appeal to go into the question of the sufficiency of such evidence
p. 2Finality of concurrent findings of fact
In this case the objections to the conviction of the appellants depend entirely on the facts and for the reasons we have given the appeal fails and is dismissed.
p. 2Disposition

Issues in the judgment

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minor

The judgment text contains a typographical corruption in the opening paragraph, mixing the heading and body text.

minor

The judgment is dated 25th January 2001 in the delivery clause; the record header shows no conflicting date, but the appeal number year (2000) and delivery year (2001) should be noted for citation accuracy.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "MASUO BAKARI TAJIRI & MOHAMED ABDULRAHMAN SAID vs REPUBLIC [2001] KECA 98 (KLR)", Case Analysis (2001). Criminal Appeal No. 170 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/98/eng@2001-01-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.